Swaziland: Court of Appeal

APPEAL CASE NO.8/2002

Steyn JA:

This Court however went on to say:-

“Finally, we have been advised that pursuant to the second judgment of the Chief Justice the appellants and persons in their community affected by the order of the Minister of Home Affairs have been evicted from their homes in ka-Mkhweli. The effect of this judgment is that the status quo ante must be restored, that they must be allowed to return and that that position must be maintained until the final determination of the proceedings in the High Court.” (emphasis added)

On the 8^th June 2001 the Government once again appealed against an order granting the same relief to the original four respondents of which the respondent is one. The appellants abandoned the appeal during the course of the session and this Court granted those respondents – including Madeli Fakudze (the present respondent) the following relief, namely.
         “The respondents may now return to their homes at Macetjeni area in the Lubombo Region.” An appropriate costs order was also granted.

It is clear that the respondent is one of the persons who was wrongfully evicted by the security forces on the 13^th of October 2000 from the regions identified in the above orders.
Acting on the strength of this Court’s Order of the 8^th of June 2001 and the judgment and orders of December 2000, the respondent went back to his home at Macetjeni on Wednesday the 17^th of October 2001.
The evidence of the respondent as to what happened on their arrival can best be conveyed by recording the evidence in the court a quo verbatim. The respondent tells his story as follows:-

         They then left saying they were going back to their camp which is hardly 500 metres from Prince Maguga’s residence but more than 2 kilometres from Chief Mliba’s residence. They did however point out that they were yet to consult their superiors.
         Just when we were still preparing to spend the first night at home with my wife and children, the police officers confronted us again at +-8pm. They were led by the Station Commander at Siphofaneni Police Station, a certain Sergeant Mthethwa.
         They told us in no uncertain terms that they had been given an order by the Commissioner of Police to tell us to leave our home immediately. I again showed them the court order and asked them to produce any document cancelling the said court order. They said they were acting on a verbal order that they had been given by the Commissioner.     

I was with my younger brothers Zeblon and Solomon Fakudze in the house. They also asked the police officers why they have persistently refused to allow all the evictees (including my elder brother Chief Mliba Fakudze) to return to their homes following the Order made by the Appeal Court on two separate occasions.

         The respondents therefore found it necessary once again to approach the High Court for relief and on the 9^th of November 2001 the Court issued the following order:
         “It is hereby ordered that:
(a)     

The 1^st respondent and or any of its security forces are hereby interdicted and restrained from preventing applicant from returning to and residing at his home Macetjeni area in the Lubombo region pending the finalization of Case No.2823/2000.
(b)     

The order was duly served on the Attorney-General and on the Commissioner of Police who is the first respondent in this appeal.

“Pursuant to this Court Order, (i.e. the order of the 9^th November) I proceeded to my home at Macetjeni on the 9^th December 2001 (a Sunday). I was in the company of my younger brother, Zeblon Fakudze.

As we were still clearing the yard a police officer who introduced himself as Sergeant Simelane came and enquired why we were within the premises as I have been evicted from the area last year. I showed him the court order and he read it. He then asked me why I had not come back earlier since the court order was dated the 13^th November 2001. I told him that I had been in hospital all along and had just been discharged. He then told us to stop clearing the yard until he had informed his superiors. We complied. He then left.
After about thirty (30) minutes he came back and said his superiors were coming to speak to us and asked us to go to the security camp in the area to meet them. We refused and said we would rather come out of the premises and sit next to the perimeter fence pending the arrival of his superiors.
After about an hour a large group of police officers came. They were led by the 3^rd respondent who did the talking all the time. The 3^rd respondent told me in no uncertain terms that he did not want to see me within the premises of my home since I was evicted from the area last year. I showed him the court order but he refused even to look at it. I then told him that the court order said I should not be prevented from returning to and residing at my home pending the finalization of the main application (i.e. case no.2823/2000). He told me that I should take the court order and give it to one who evicted me from the area.
I then asked him to show me any document authorising him to prevent me from returning to my home. He failed. I further asked him why he was doing this since the police were served with the court order. He told me that whoever received the court order merely signed because he was receiving it not that he was bound by its contents. He then told me that he was not going to argue with me any further and that I should leave the place immediately failing which he would use violence. I then told my brother that we better leave the area. We left.
I then boarded public transport and went back to Makhewu area, past Siteki where I am presently residing with a relative.”

On the 13^th December 2001 the respondent therefore brought an application before the High Court in which he sought the following relief:

“Committing the 3^rd respondent (presently the 3^rd respondent) to prison for seven days for contempt of the court order issued by this Honourable Court on the 9^th November 2001.

Directing the 1^st respondent to ensure that the applicant is not again prevented from returning and residing at his home at Macetjeni area in the Lubombo District pending the finalisation of Case No.2823/2000.
Directing the respondents to pay costs jointly and severally the one paying the other to be absolved on the Attorney and own client scale including counsel’s fees calculated on the same scale.”

This application was opposed. It was heard by Matsebula J and in a judgment dated the 14^th of March 2002 he granted the application as prayed. He did however, quite correctly suspend the committal of the 3^rd respondent to prison “on condition that the respondents, that is the first and third respondents, obey the court order issued by this Court and do not stop the applicant from returning to his homestead.” (emphasis added)
         It is against this order that the three appellants have appealed to this court.
         Whilst in its opposing affidavits the appellants have challenged some of the detailed allegations concerning the manner in which they treated the respondent, they have not contested the fact that they have prevented the respondent from returning to his homestead and that they have done so deliberately and with a full appreciation of the nature and consequences of their conduct.
         As the learned trial Judge pointed out in his judgment all they say is to the effect that “the respondent and his Chief were evicted from the Macetjeni area, (and that) the contents of the court order is of no moment (to them, the police).” It is clear that the third respondent (Dladla) relied on instructions received from the Commissioner of Police and acted as he did because he “had no mandate to deviate from it.”
         The only other contention upon which the appellants rely are averments concerning national security.
         The first respondent says the following in this regard:

“I wish to state that I have information about this matter the effect of which is that national security is greatly threatened if I can divulge it to this Honourable Court. We do have a very plausible explanation why we do not allow applicant, and other evictees, to return to Macetjeni and kaMkhweli areas where they are resident before they were evicted. I would like to state such reasons before this court but because any attempt to do so will jeopardize national security I feel, strongly, that such information should not be divulged to the public.
I am fully aware of the court orders that this court has issued time and again ordering that the evictees be returned or be allowed back to their original places of residence. The reason why I am not enforcing them is also based on the security of the nation which I am in possession of verified information, that it is threatened should I enforce the same.
I am in no way wilfully refusing to obey the court orders but I submit that in as much as I have an obligation to comply with the orders of this Honourable Court I have another competing, but paramount, duty to ensure that national security is not threatened and that any thing which so threatens national security must be brought under our full control and that national security considerations override all other interests whether they rise out of a court order or not and they are all subject to the dictates of national security. I do not intend not complying with the court order indefinitely but as soon as the threat is over applicant will be re-instated back to his original home. It is also unfortunate that my non-compliance with the court order prima facie amounts to contempt of court but I wish to state that I have a valid reason for my conduct and I cannot disclose it in this affidavit because the same is a public document which any member of the public can have access to.”

In a short affidavit the Commanding Officer of the Umbutfo Swaziland Defence Force says the following:

“I am an adult Swazi male employed by the Government of Swaziland as an Army Commander of the Umbutfo Swaziland Defence Force and I have my head office situated at Bethany Army Headquarters. My primary duty is to defend the country against any external and internal military invasion and to assist in the keeping of peace in the country whenever there is a breach of peace. I am perfectly aware of this matter and I have deployed some soldiers to keep the peace in the Macetjeni and kaMkhweli areas to work jointly with police officers working for the first respondent herein and thus I am entitled to depose to an affidavit ex officio.
The facts herein stated are within my personal knowledge and are derived from reliable sources within the reach of my office and `documentation in our possession and are true and correct.
I have read the answering affidavit of the third respondent and the supporting affidavit of the Commissioner of Police and I confirm them in all respect and in so far as they talk about the existence of a threat to national security. I hereby state that it was the presence of such a threat that made me to deploy my troops in the Macetjeni area thus there is a security problem which we are still monitoring, which has also made it difficult for us to allow the applicant back to his original area of residence. I will withdraw my troops in the area as soon as the security problem has been overcome.”

The learned judge in his judgment says the following concerning the last gasp attempt to raise national security as a barrier to the enforcement of the court order. The relevant portion of his judgment reads as follows:

“This Court rejects the question raised, i.e. security by the third respondent. This rejection is based on the following grounds:-
(a)     

Reference was made to case no.2823/00 which at the time when this application was made the case was pending at the High Court;
(b)      Reference was also made to the decision by the Court of Appeal case no.2823/00. At some stage during the hearing of the case an officer from the Attorney-General went into the w